SATHISH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE detenu, namely, Sathish, who was detained as Goonda under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) by the impugned proceedings dated 15-02-2005, challenges the same in this petition.

(2.) LEARNED counsel appearing for the petitioner among other contentions, at the foremost, projected that inasmuch as the detenu's two earlier bail applications were dismissed one by the Judicial Magistrate and another by the Sessions Court, in the absence of any reference with regard to this in the grounds of detention, the detention order is liable to be set aside on the ground of non application of mind on the part of the detaining authority. In this regard, it is relevant to refer the actual statement of fact referred to by the detaining authority in para 4 of the grounds of detention which reads as under: "4. I am aware that Thiru Sathish is in remand in G3 Kilpauk Police Station Crime No. 108/2005 and he has not moved any bail application so far. I am also aware that there is imminent possibility of his coming out on bail by filing a bail application, since in similar cases bails are granted by the Sessions Court or Higher Courts after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. " the above statement makes it clear that the detaining authority was aware of the fact that the detenu is in remand. However, he has made a categorical statement that "he (detenu) has not moved any bail application so far". On the other hand, it is the claim of the petitioner that in the ground case in Crime No. 108/2005 the accused has filed a bail application in M. P. No. 308/2005 before the learned XIV Metropolitan Magistrate, Egmore, Chennai and the same has been dismissed by the learned Magistrate on 9-2-2005. It is also seen that subsequently he has filed a bail application in Crl. M. P. No. 1474/2005 before the Principal Sessions Court, Chennai on 11-02-2005 i. e. , before passing of the detention order on 15-2-2005. These details find place in Para 3 (f) of the affidavit filed in support of the above petition. But in the grounds of detention, contrary to the above facts, the detaining authority has stated that the detenu has not moved any bail application so far. According to the counsel, this is an incident of non-application of mind on the part of the detaining authority and on this ground, the detention order is liable to be quashed.

(3.) APART from the specific averment in Ground 3 (f) of the affidavit, learned counsel has also produced a copy of the bail petition in M. P. No. 308/2005 on the file of XIV Metropolitan Magistrate, Egmore, Chennai and Crl. M. P. No. 1474/2005 filed before the Principal Sessions Court, Chennai. Even though in the bail application filed before the learned Metropolitan Magistrate, there is no specific averment to get the attention of the Magistrate for consideration, however, in the bail petition before the Principal Sessions Court, Chennai it is specifically stated that he has been falsely implicated. It is further stated that a stranger gave a complaint clearly stating the names of the accused and the alleged independent acts by each accused. It is also stated that a stranger will not know the names of passers-by. The petitioner also stated therein that he has no bad antecedents and he is the sole bread-winner of his family and will not tamper witnesses or hamper the investigation. As rightly pointed out by the learned counsel for the petitioner, even though the first bail petition was dismissed by the learned Magistrate on 9-2-2005 another bail application was filed before the Prl. Sessions Court, Chennai on 11-2-2005 i. e. , well before passing of the detention order on 15-2-2005. In such a circumstance, the sponsoring authority ought to have forwarded those materials to the detaining authority, who in turn, ought to have referred the same in the grounds of detention. In such a circumstance, it is useful to refer a judgement of this Court in Esaac v. The Secretary to Government Prohibition and Excise Department, Chennai-9 and Others, reported in 1999 (2) Madras Weekly Notes page 248 wherein the Bench has held that "non placement of materials deliberately before the detaining authority while passing the order of detention will definitely vitiate the detention order which will be sufficient to hold in favour of the detenu. In another judgement in P. M. Subramanian v. State of Tamil Nadu, represented by its Secretary, reported in 1999 (2) MWN (Cr. 244), this Court, after finding that the sponsoring authority was aware of the bail and yet, failed to put the same, has concluded: "the non-consideration of pending bail application wherein the detenu had retracted the facts of the ground case would be a major fact against the legality of the detention order. It will then have to be held that the sponsoring authority has failed to place the relevant materials before the detaining authority which would have one way or the other affected the discretion of the detaining authority to order detention. In that view of the matter, the petition has to succeed. . . " both the above said decisions are applicable to the case on hand.